February 7, 2016

"Restitution and the Excessive Fines Clause"

The title of this post is the title of this notable new paper authored by Kevin Bennardo now available via SSRN. Here is the abstract:

Restitution is a component of many criminal sentences. There is little agreement, however, upon whether and how the Eighth Amendment of the Constitution limits restitution orders in criminal cases. Courts have long been divided over whether the Excessive Fines Clause applies to restitution orders at all, whether to apply the “grossly disproportional” test to restitution orders or some other causation-based test, and how to measure gross disproportionality in the restitution context.

First, the Excessive Fines Clause of the Eighth Amendment should be read as a limit on restitution orders in criminal cases. The Eighth Amendment applies because these monetary payments are partially punitive. And, although restitution payments are not made to the sovereign, the concept of “fines” for purposes of the Excessive Fines Clause is properly understood to encompass payments to third parties that result from government-initiated action.

Second, the same “grossly disproportional” test that has been applied to criminal fines and forfeitures should apply to restitution orders as well. Indeed, all monetary sanctions should be pooled together for purposes of a single Excessive Fines Clause proportionality analysis. The constitutionally-relevant question should be whether an offender’s total monetary sanction is grossly disproportional to the gravity of the offense. Although causation between the offense conduct and the victim’s loss is generally a statutory requirement of restitution orders, it is not a constitutional one. The causation requirement furthers restitution’s remedial purpose; it is not relevant to the Eighth Amendment’s excessiveness inquiry, which functions to limit the punitive severity of monetary sanctions.

Lastly, the question of gross disproportionality is largely an exercise of judgment that should be left to the judiciary. Some courts have inappropriately wholly relied on analyzing whether the monetary sanction was authorized by the legislature in assessing the constitutionality of the penalty. This approach inappropriately collapses the constitutional inquiry into the statutory one. Although the statutory restitution or fine range may be a useful input in the constitutional analysis, it cannot be the sole component. In the end, the judiciary's independent judgment must be trusted to weigh proportionality and detect unconstitutionally excessive monetary sanctions.

Like punitive damages, this should be a due process matter generally, especially the taking of property. But, either as "fine" or "punishment," this makes sense. Things that are de facto fines and punishments should be treated as such for constitutional purposes.